indirectly in the nature of confessional evidence; since such statements from the nature of the case must be ambiguous, or relate but obscurely to the corpus delicti.

"Hasty confessions," says Sir Michael Foster, "made to persons having no authority to examine, are the weakest and most suspicious of all evidence. Proof may be too easily procured, words are often misreported, -whether through ignorance, inattention, or malice, it mattereth not to the defendant, he is equally affected in either case; and they are extremely liable to misconstruction, and withal this evidence is not in the ordinary course of things to be disproved by that sort of negative evidence, by which the proof of plain facts may be and often is confronted." (p)

Upon the trial of Richard Coleman at Kingston spring assizes, 1748-49, for the murder of a woman, who had been *brutally assaulted by three men, and died [*68] from the injuries she received, it appeared that one of the offenders, at the time of the commission of the outrage, called another of them by the name of Coleman, from which circumstance suspicion attached to the prisoner. A person deposed that he met the prisoner at a public-house, and asked him if he knew the woman who had been so cruelly treated, and that he answered "Yes, what of that?" The witness said that he then asked him if he was not one of the parties concerned in the affair; to which he answered, according to one account, "Yes, I was, and what then?" or, as another account states, "If I was, what then?" It appeared that the prisoner was intoxicated, and that the questions were put with the view of ensnaring him; but, doubtless much influenced by this imprudent and blameable language, the jury convicted him, and he was executed. The real offenders were discovered about two years

(p) Foster's C. L. 243; and see 1 Greenleaf's L. of Ev. § 214.

afterwards, and two of them were executed for this very offence, and fully admitted their guilt; the third having been admitted to give evidence for the Crown, and the innocence of Coleman was rendered indubitable. (q)

[*69]

In the most debased persons there is an involuntary tendency to truth and consistency, except when the mind is on its guard, and studiously bent upon concealment. This law of our nature sometimes gives rise to evidentiary facts of great weight, and may be traced in minute and unpremeditated acts. In the case of Eugene Aram, who was tried in the year 1759, for the murder of Daniel Clark, an apparently slight circumstance in the conduct of Houseman, his accomplice, led to Aram's conviction and execution. About thirteen years after the time of Clark's being missing, a labourer, employed in digging for stone to supply a limekiln near Knaresborough, discovered a human skeleton near the edge of the cliff. It soon became suspected that the body was that of Clark, and the coroner held an inquest. Aram and Houseman were the persons who had last been seen with Clark, on the very night before he was missing. Houseman was summoned to attend the inquest, and discovered signs of uneasiness at the request of the coroner he took up one of the bones, and in his confusion dropped this unguarded expression, "This is no more Daniel Clark's bone than it is mine;" from which it was concluded, that if he was so certain that the bones before him were not those of Clark, he could give some account of him. He was pressed with this observation, and, after various evasive accounts, he made a full confession of the crime; and upon search, pursuant to his statement, the skeleton of

(2) 1 Remarkable Trials, 162, 172. 4 Celebrated Trials, 344, Rex v. Jones and Welch.

Clark was found in St. Robert's Cave, buried precisely as he had described it. (r)

A remarkable fact of the same kind occurred in the case of one of three men convicted, in February, 1807, of the murder of Mr. Steel. In consequence of disclosures, made by an accomplice, a police-officer apprehended the prisoner about four years after the murder on board the Shannon frigate, in which he was serving as a marine. The officer asked him in the presence of his captain where he had been about three years before; to which he answered that he was employed in London as a day-labourer. He then asked him where he had been employed that time four years: the man immediately turned pale, and would have fainted away had not water been administered to him. These marks of emotion derived their weight from the latency of the allusionno express reference having been made to the offence with which the prisoner was charged-and from the probability that there must have been some secret reason for his emotion connected with the event so obscurely referred to, particularly as he had [*70] evinced no such feeling upon the first question, which referred to a later period. (s)

To this head may be referred the acts of concealment, disguise, flight, and many other ex post facto indications of mental emotion. By the common law, flight was considered so strong a presumption of guilt, that in cases of treason and felony it carried the forfeiture of the party's goods whether he was found guilty or acquitted; (t) and the officer always, until the

(r) The genuine account of the life and trial of Eugene Aram, and Biographia Britannica, article EUGENE ARAM.

(s) 6 Celebrated Trials, 19; and Sessions Papers, 1807. (t) Co. Litt. 375.

abolition of the practice by statute, (u) called upon the jury after verdict to state whether the party had fled on account of it. (v) These several acts in all their modifications are indications of fear; but it would be harsh and unreasonable invariably to interpret them as indications of moral consciousness, and greater weight has sometimes been attached to them than they have fairly warranted. Doubtless the manly carriage of integrity always commands the respect of mankind, and all tribunals do homage to the great principles from which consistency springs; but it does not follow that, because the moral courage and consistency which generally accompany the consciousness of uprightness raise a presumption of innocence, the converse is always true. Men are differently constituted as respects both animal and moral courage, and fear may spring from causes very different from that of conscious guilt. Mr. Justice Abbott, on a trial for murder where evidence was given of flight, observed in his charge to the jury, that "a person, however conscious of innocence, might not have courage to stand a trial; but might, although innocent, think it necessary to consult his safety by flight." "It may be," added the learned judge, “a conscious anticipation of punishment for guilt, as the guilt will always *anticipate the consequences;

but at the same time it may possibly be, accord- [*71]

ing to the frame of mind, merely an inclination to consult his safety by flight rather than stand his trial on a charge so heinous and scandalous as this is." (w) It is not possible to lay down any express test by which these various indications may be infallibly referred to any more specific origin than the operation of fear.

(u) 7 and 8 Geo. IV. cap. § 5.

(v) 1 Hale, P. C. ch. 27, and 2 ibid. ch. 12. 4 Bl. Comm. 387. (w) Rex v. Donnall, post.

Whether that fear proceeds from the consciousness of guilt, or from the apprehension of undeserved disgrace and punishment, and from deficiency of moral courage, is a question which can be judged of only by reference to concomitant circumstances. Prejudice is often epidemic, and there have been periods and occasions when public indignation has been so much and so unjustly aroused as reasonably to deter the boldest mind from voluntary submission to the ordeal of a trial. The consciousness that appearances have been suspicious, even where suspicion has been unwarrantable, has sometimes led to acts of conduct apparently incompatible with innocence, and drawn down the unmerited infliction of the highest legal penalty.

The inconclusiveness of these circumstances is strikingly exemplified in the before-mentioned case of Coleman.(x) The magistrate was so fully convinced of the prisoner's innocence, that he allowed him to go at large on bail to appear at the assizes. The coroner's inquest having brought in a verdict of guilty against him, he endeavoured to escape from the danger of a trial in the excited state of public feeling by flight; but was subsequently apprehended, and convicted, and executed on a charge of murder, of which he was unquestionably guiltless.(y)

In the endeavour to discover truth no evidence should *be excluded; but that case must be scanty of [#72] evidence which demands that importance should

be attached to circumstances so fallacious as the acts in question.

(x) Ante, p. 68.

(y) See also the case of Green and others, 14 St. Tr. 1369, where several persons, one of whom had voluntarily surrendered, were convicted on a groundless charge of murder and piracy.